Appellate in the Criminal Procedure

Appellate in the Criminal Procedure

Legal Basis

Criminal Procedure Code No.101/2015/QH13 dated November 27th 2015.

Appellate in the Criminal Procedure

2.1. What is an appeal?

The law does not specifically stipulate what an appeal is, however we can understand that an appeal is a basic right of citizens when they believe that a court judgment or decision is not in accordance with the law.

The person with the right to appeal expresses his disagreement with the Court’s decisions in the first instance judgment or decision and requests the Court of Appeal to reconsider that judgment or decision.

2.2. Who has the right to appeal?

Article 331 of the Criminal Procedure Code stipulates subjects with the right to appeal including:

Defendants, crime victims and their representatives shall have the right to appeal against the judgments or rulings of the first instance court.
The defense attorney has the right to appeal to protect the interests of the person under 18 years old or the person with mental or physical weakness whom he or she defends.
Civil plaintiffs, civil defendants and their representatives shall have the right to appeal against parts of the judgments or rulings, that are related to compensations for damage.
Individuals having benefits and duties from the case and their representatives shall have the right to appeal against parts of the judgments or rulings, which are associated with their duties and benefits.
The protectors of legitimate rights and benefits of crime victims or litigants aged less than 18 or having mental or physical defects shall have the right to appeal against parts of the judgments or rulings, which are in connection with the benefits and duties of those under their protection.
A person declared not guilty by a Court shall have the right to appeal against the justifications of the first-instance court’s verdict of no guilty.

2.3. Time limit for appeal

The time limit for appeal against a first-instance court’s judgments is 15 days upon the pronouncement of such judgments. If the defendant or litigant is absent from the court, the time limit for appeal commences upon his receipt or the proclamation of the judgments according to the laws.

The time limit for appeal against a first-instance court’s rulings is 07 days and commences when the person entitled to appeal receives such rulings.

The entry date of an appeal is determined as follows:

In case the appeal is sent via postal service, the appeal date is the date according to the postmark of the place of sending;
If the written appeal is forwarded by the warden of the detention center or head of the detention facility, the entry date of the appeal shall be the date when the warden or detention head receives the written appeal. The warden or detention head must specify and confirm the date of receipt by affixing his signature on the written appeal;
If the appellant submits the written appeal in court, the entry date of the appeal shall be fixed upon the Court’s receipt of the written appeal. If the appellant directly appeals in court, the entry date of the appeal shall be fixed upon the Court’s written record of such appeal.

2.4. Appellate procedure

The appellant lodges an appeal to the court that conducted the first instance trial or a court of second instance.

If the defendant is held in detention, the warden of the detention center or head of the detention facility must enable the defendant’s execution of his right to appeal. The warden or head shall obtain and forward the written appeal to the first-instance court that issued the judgments or rulings appealed.

The appellant can directly present his appeal to the court that conducted the first-instance trial or the appellate court.

The appellate court, that has made the written record of the appeal or received the written appeal, shall send such record or written appeal to the first instance court for further activities according to general regulations.

The appeal has the following main contents:

The date of the written appeal;
The full name and address of the appellant;
The reasons and petitions of the appellant;
The signature or fingerprint of the appellant.

The written or direct appeal shall be enclosed with additional evidences, documents and items, if available, that evince the grounds of such appeal.

2.5. Overdue appeal

The filing of a late appeal shall be permissible on condition that the appellant has been obstructed by force majeure or objective obstacles to lodge an appeal within the time limit as defined by this Law.
The court of first instance, in 03 days upon receiving a late appeal, shall forward to the appellate court the written appeal, the appellant’s letter explaining the retardation of the appeal and evidences, documents and items (if available).
The appellate court, in 10 days upon receiving the late appeal enclosed with evidences, documents and items (if any), shall establish a Panel of three Judges to scrutinize the late appeal. The panel that contemplates the late appeal shall be entitled to decide to endorse or reject such appeal in writing and specify its reasons in the written decision.
The procurator of the equivalent Procuracy shall attend the meeting, in which the late appeal is perused. The appellate Court, in 03 days prior to its contemplation of the late appeal, shall send a copy of the late appeal with evidences and documents (if any) to the equivalent Procuracy. The procurator shall express the Procuracy’s standpoints on the ratification of the late appeal.
The decision by the late appeal review Panel shall be sent to the appellant, the Court of first instance and the Procuracy equivalent to the appellate Court.
If the appellate Court accepts the late appeal, the Court of first instance shall go through the formalities as defined in this Law and send the case file to the appellate Court.